Among two of the most noteworthy recent global regulatory trends are the spread of anticorruption enforcement and the rise in cross-border enforcement collaboration. Both of these trends were evident in the Canadian government’s recent prosecution of the first individual ever convicted after trial under Canada’s equivalent to the FCPA, the Corruption of Foreign Public Officials Act. As discussed in a September 27, 2013 memo from the Holland & Hart law firm entitled “Canada’s First ‘FCPA’ Trial & Increased International Law Enforcement Cooperation” (here), Canada has added itself to the growing list of countries more actively pursuing anticorruption enforcement. As that list extends, cross-border enforcement collaboration is becoming increasingly common.
Nazir Karigar’s prosecution arose out of an effort by a Canadian subsidiary of a U.S. technology company to win a contract with Air India (a state-owned entity) for facial recognition software and other passenger-security equipment. Karigar, hired as a consultant to help guide the company through Air India’s procurement process, allegedly orchestrated a conspiracy to pay bribes to an Air India official and to India’s Minister of Civil Aviation.
The company ultimately did not win the contract, and a compensation dispute arose between Karigar and the U.S.-based parent company. As the law firm memo put it, “in an ill-conceived plan to retaliate, Karigar apparently sent an ‘anonymous’ tip about the foreign bribery scheme” to the U.S. Department of Justice. The DoJ passed the information to their Canadian counterparts, who then charged and successfully prosecuted Karigar. On August 15, 2015 the Ontario Superior Court found that Karigar had conspired to offer bribes to foreign government officials in violation of the CFPOA.
The FCPA Blog has a more detailed description of Karigar’s prosecution in an August 27, 2013 post, here. (Among other things, The FCPA Blog notes that Karigar was convicted despite the absence of direct evidence of the payment or receipt of a bribe.)
Among other things about this prosecution, the law firm memo notes that the implication of this prosecution that “the enforcement of anti-corruption laws is no longer just a ‘U.S. thing.’” For many years, the U.S. had been sort of a “Lone Ranger” on anticorruption enforcement. The CFPOA has been on the books since 1999, but more recently that statutes provisions have been more actively enforced. Now, the Canadian authorities are, in addition to the Karigar case, pursing a criminal prosecution in a wide-ranging scheme involving multiple payments in as many as five countries (including Canada). As the law firm memo puts it, the Karigar conviction is “yet another indication that Canada has joined the United States, Germany, the United Kingdom, Switzerland and other countries in the global anti-corruption enforcement bandwagon.”
This prosecution also highlights “growing international cooperation.” The law firm memo notes that the “recent explosion in cooperation” has been facilitated “by the expansion of instantaneous international communications,” as well as “the stationing abroad of FBI and other federal agents from various U.S. law enforcement agencies” and “international consensus and cooperation in defining certain criminal conduct.”
The upshot of all of this is a growing risk of regulatory enforcement activity, both for non-U.S. companies operating in their home countries and elsewhere abroad, and for U.S. companies operating outside the U.S. The emerging global regulatory risk is an issue about which we will be hearing a great deal more in the coming months. This emerging risk pertains not just to anticorruption enforcement activity, but also, includes, among many other issues and topics, export control, trade sanctions, money laundering, banking and privacy, antitrust, environmental, and a host of other regulatory issues.
One important common thread in the trend toward increasing cross-border collaboration is the frequent involvement of U.S. regulators, which is consistent with a message I highlighted in a recent post -- that U.S. regulators are actively asserting their regulatory authority outside of the U.S. In an environment where there already is a growing perception of increasing regulatory risk, the U.S. authorities’ vigorous assertion of regulatory authority outside the U.S. represents a particularly hazardous part.
I happen to think that the increasing global regulatory enforcement activity is one of the important emerging trends involving corporate liability. These developments have very important liability implications both for non-U.S. companies in their home countries and operating abroad, and for U.S. companies operating overseas. For D&O underwriters, these developments have important underwriting implications. And for policyholders and their advisors, these developments raise important and challenging questions about the availability and effectiveness of their insurance to respond to these emerging regulatory claims.
Weak Banks, Hanging On: As time has gone by since the peak of the financial crisis, the number of bank failures has declined as the economy has recovered. What is more surprising is that banks continue to fail. So far during 2013, 22 banks have failed, including two in the month of September. One reason for this continued drip of bank failures may be that the FDIC has allowed some weaker banks to stay alive, in the hopes that the troubled bank might be able to pull itself back from the brink.
An interesting September 29, 2013 Wall Street Journal article entitled “Staying Alive: Weak Banks Hang On” (here) takes a look at how the FDIC seems to be allowing troubled banks to linger for longer periods. According to the article, 13 of the 22 banks that have failed in 2013 were “significantly undercapitalized” for a least a year before they failed. That compares with just 20% of the bank failures in 2012.
According to the Journal article, on average, this year’s failed banks were significantly undercapitalized or worse for 6.3 consecutive quarters before failing, compared with 3.5 quarters last year. Of all of the banks that have sunk to significantly undercapitalized status in the last 15 years, 65% have gone on to fail, according to sources cited in the Journal article.
The article suggests there is downside to the government’s approach -- that the “go-slow approach” can “prompt banks’ management to take extreme risks to survive and can lead to bigger price tags for the government if they ultimately fail.” The article goes on to note that banking regulators have been criticized for the inaction in the run up to the financial crisis, citing a Treasury department report critical of regulators because “they often didn’t take strong, quick action to address risky practices that helped lead to the bank’s failure.”
The implication of the Journal article is that despite improvements in the general economy and in the banking sector, there is still a backlog of banks that likely will fail before all is said and done. This is in fact consistent with the FDIC’s most recent quarterly banking profile. As discussed here, in the agency’s latest profile, the FDIC reported that there are still over 550 problem institutions, representing about eight percent of all banks. Not all of these banks will fail; some will be merged into healthier banks and others will be able to complete their recovery. But there will be some that will fail. If the Journal article is accurate, the closure dates for the banks that eventually will fail could be dragged out for some time.
All of this is a reminder of the challenges facing D&O insurance underwriters active in the banking sector. Even though the financial crisis is moving further into the past every day, there are still significant legacy issues.. For that reason, D&O underwriters continue to proceed cautiously with regard to banking institutions. Even healthy banks continue to face scrutiny and even increased premiums. Placements of troubled banks remain very challenging.